It’s been a busy few weeks finalizing some other projects, including tests, papers, seminar presentations and the like (and I finally finished that anime-ish P-40 for Parker with accurate paint colors), but I’m finally able to turn more of my attention to some of the very interesting activity in the district in the last few weeks. And speaking of interest, there are few cases that have generated more than VirnetX v. Apple, which just had its most recent trial’s postverdict motions come out. Most legal news is interested in the bottom line – that the verdict amount of $302 million resulted in a $439 million judgment, but for practitioners the analysis of how it got there is of great interest – I am not the only one out there that enjoys a good JMOL. So I wanted to work through the motions, but only after a short … well, that’s a lie, it’s not going to be short – procedural history.
One of the points I am making in the papers I am writing and panels I am speaking on this fall re: TC Heartland is that the issue of whether venue is improper as a result of Heartland/Cray is sometimes rendered moot by the resolution of a followup 1404 motion seeking transfer. We saw another example of this in the EDTX just this week.
Plaintiff and the defendant in this pending Delaware patent case Encoditech v. Virgin Pulse, 1:17cv1283 RGA jointly sought transfer to the Eastern District of Texas, Tyler Division. In the motion the parties state:
“The Parties believe and agree that the Eastern District of Texas is a more convenient forum for many recognized reasons, including: (1) Plaintiff is incorporated and located in the Eastern District of Texas, (2) Defendant’s witnesses for the purposes of this matter are closer to Texas than Delaware, and (3) the transferee district is currently less congested than this District.”
A recurring issue in patent cases is when a technical expert’s opinion is consistent with the Court’s claims construction, and simply opines whether infringement exists under the construction, and when it is not. A recent case provided three useful examples where an expert did – but in some cases did not – proffer opinions that were consistent with the claim constructions the jury would have to consider, or was otherwise permissible.
It’s sad around the Hub these days, and I’m sure it’s not because our oldest Grayson has officially left home to start engineering school at Baylor, but because Judge Love has recommended granting the plaintiff’s motion for summary judgment on the defendants’ claims of inequitable conduct and unclean hands in this case, leaving the defendant standing beside their truck in the parking garage trying not to completely lose it as they try to go on as if things will ever be the same again.
Metaphorically speaking, of course.
This is a patent infringement case filed last fall. By February of this year, only one defendant was left. That defendant challenged venue in its answer, and five days after the scheduling conference TC Heartland came out. The remaining defendant filed a motion to dismiss for improper venue shortly afterwards. Judge Love’s opinion granting the motion addresses a the proffered waiver argument, as well as the plaintiff’s claim that the motion should be denied because multidistrict litigation was “imminent.”
One of the most active corners of the venue world in recent weeks has been when an improper venue defense that is waived for failure to assert in a defendant’s initial filings under FRCP can be revived. We recently have seen cases interpreting whether the Supreme Court’s TC Heartland counts as an intervening change in the law, and last week we saw another strategy tried.
I once was talking to a lawyer from another state about why his side kept offering a specific piece of evidence in a patent case after the judge had – repeatedly – excluded it. He explained that where he was from, you keep offering the evidence until the judge threatens to jail you if you don’t stop. Well, we don’t do it that way here – most lawyers this way have this endearing tendency to follow court rulings once an objection is preserved, but here’s an example of a case where one side that didn’t think that was the way to go – and what followed.
A Tyler jury in Judge Rodney Gilstrap’s court rendered a verdict in a patent case Friday afternoon, finding that the defendant directly infringed, and further finding willful infringement, and rejecting the invalidity defenses of lack of written description or enablement. The jury awarded the plaintiff $4.1 million. Just how big of a win this actually was might be made clearer by the post on Judge Love’s opinion excluding a damages expert’s supplementation on the issue of indirect infringement – because I don’t see that indirect infringement was even submitted in the attached verdict.
Just got back from vacation with the herd and in the mad rush to get out didn’t get a post up on this verdict from Tyler in Judge Schroeder’s court which gave both sides something to cheer about.
I’ll be adding other posts during the day (because of course the first day back in the office after vacation is a leisurely one). There’s another verdict and we now have three weeks of filing data post TC Heartland to examine. And no, Collin isn’t possessed, but we are making him sleep with garlic flowers for a few weeks just, you know, in case.